Citation Nr: 0923204
Decision Date: 06/19/09 Archive Date: 06/23/09
DOCKET NO. 07-14 959 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Boston, Massachusetts
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Katie Molter, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1950 to April
1952.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2006 rating decision in
which the RO, in pertinent part, denied both claims. The
Veteran perfected appeals to the denial of both claims.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. While in service, there is no indication that the Veteran
was exposed to excessive noise or acoustic trauma.
2. The evidence of record is void of any treatment or
diagnosis for bilateral hearing loss or tinnitus.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing
loss are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.385 (2008).
2. The criteria for service connection for tinnitus are not
met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.159, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2008)) includes enhanced duties to notify
and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).
Notice requirements under the VCAA essentially require VA to
notify a claimant of any evidence that is necessary to
substantiate the claim(s), as well as the evidence that VA
will attempt to obtain and which evidence he or she is
responsible for providing. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (addressing the duties
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).
As delineated in Pelegrini v. Principi, 18 Vet. App. 112
(2004), after a substantially complete application for
benefits is received, proper VCAA notice must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim(s); (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the
claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. §
3.159 has been revised, in part. See 73 Fed. Reg. 23,353-
23,356 (Apr. 30, 2008). Notably, the final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request that a claimant provide any pertinent
evidence in his or her possession.
VA's notice requirements apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
VCAA-compliant notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case, the
RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003).
In this appeal, an April 2006 pre-rating letter provided
notice to the Veteran regarding what information and evidence
was needed to substantiate the claims for service connection,
as well as what information and evidence must be submitted by
the Veteran, what information and evidence would be obtained
by VA, and that he should send the information describing
additional evidence or the evidence itself to the VA. The
letter also provided notice as to how disability ratings and
effective dates are assigned (if service connection is
granted), and the type of evidence that impacts these types
of determinations, consistent with Dingess/Hartman.
The record also reflects that VA has made reasonable efforts
to obtain or to assist in obtaining all available records
pertinent to the matters on appeal. Pertinent medical
evidence associated with the claims file consists only of the
Veteran's service treatment records. The Board notes that
the Veteran submitted his VCAA Notice Response in May 2006,
indicating that he had been made aware of the evidence and
information that VA would need to substantiate his claims.
On that form, the Veteran indicated that he had no other
information or evidence to submit to the VA. Additionally,
the Veteran reported only receiving treatment for the claimed
disabilities while in service. Also of record and considered
in connection with the appeal are various written statements
submitted by the Veteran's representative. Considering the
claim for service connection for hearing loss and tinnitus in
light of the record and the governing legal authority, the
Board finds that the claims must be denied.
In summary, the duties imposed by the VCAA have been
considered and satisfied. There is no additional notice that
should be provided, nor is there any indication that there is
additional existing evidence to obtain or development
required to create any additional evidence to be considered
in connection with the claim decided herein.
II. Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination
requires a finding of current disability that is related to
an injury or disease in service. Watson v. Brown, 4 Vet.
App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992). Service connection may be granted for any disease
diagnosed after discharge from service when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Medical evidence is required to prove the existence of a
current disability and to fulfill the nexus requirement. Lay
or medical evidence, as appropriate, may be used to
substantiate service incurrence.
When a veteran seeks service connection for a disability, due
consideration shall be given to the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by service records, the official history of each
organization in which he served, his military records, and
all pertinent medical and lay evidence. 38 C.F.R. §
3.303(a).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding service
origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. Reasonable
doubt is one that exists because an approximate balance of
positive and negative evidence which does satisfactorily
prove or disprove the claim. It is a substantial doubt and
one within the range of probability as distinguished from
pure speculation or remote possibility. 38 C.F.R. § 3.102
(2008). See also 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 53-56 (1990).
Specific to claims for service connection, impaired hearing
is considered a disability for VA purposes when the auditory
threshold in any of the frequencies of 500, 1,000, 2,000,
3,000, or 4,000 Hertz is 40 decibels or greater; the
thresholds for at least three of these frequencies are 26 or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
III. Analysis
A service treatment record dated in November 1950 shows that
the Veteran had 15 out of 15 hearing in both ears. At his
discharge examination in March 1952, the Veteran was examined
and found to have 15 out of 15 hearing in both ears. Service
treatment records show no complaints or treatment for hearing
loss or tinnitus. The claims file contains no other medical
evidence. Thus, the record is void of any evidence that
shows that the Veteran has ever had treatment for hearing
loss or tinnitus or that he has been diagnosed with either
disability.
The Veteran's DD Form 214 shows that the Veteran's military
occupational specialty was that of a plumber. The claims
file contains no indication that the Veteran was exposed to
excessive noise or acoustic trauma in service.
The Veteran has not been provided with an examination with
regard to the claims for service connection for hearing loss
and tinnitus. Under the VCAA, VA is obligated to provide an
examination when the record contains competent evidence that
the claimant has a current disability or signs and symptoms
of a current disability, the record indicates that the
disability or signs and symptoms of disability may be
associated with active service; and the record does not
contain sufficient information to make a decision on the
claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v.
Nicholson, 20 Vet. App. 79 (2006). The evidence of a link
between current disability and service must be competent.
Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).
A veteran's reports of a continuity of symptomatology can
satisfy the requirement for evidence that the claimed
disability may be related to service. McLendon v. Nicholson,
20 Vet. App. 79, 83 (2006). The threshold for finding a link
between current disability and service is low. Locklear v.
Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at
83.
In this case, there were no findings of bilateral hearing
loss or tinnitus in service. Moreover, the record contains
no competent evidence that the Veteran has a current
disability or signs and symptoms of a current disability.
For his part, the Veteran has never reported a continuity of
symptomatology. An examination is not warranted under 38
U.S.C. § 5103A (d) because there is no competent evidence
that the Veteran currently has hearing loss or tinnitus and
there is other sufficient medical evidence of record to make
a decision. Therefore, no further action is necessary to
assist the claimant with the claim.
In reaching this determination, the Board acknowledges that
the VA is statutorily required to resolve the benefit of the
doubt in favor of the Veteran when there is an approximate
balance of positive and negative evidence regarding the
merits of an outstanding issue. That doctrine, however, is
not applicable in this case because the preponderance of the
evidence is against the Veteran's claim. See Gilbert, 1 Vet.
App. at 55; 38 U.S.C.A. § 5107(b).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs